BA KO DAYA!

The group-of-three, on the other hand, seemed to have gone to the heart of the matter. Ballot papers were by law supposed to be printed,numbered serially and bound in booklets, the group noted. This was
supposed to have been done before the election. It is therefore a condition precedent to the holding of an election, any election. This condition was met in all the other elections. If the ballot papers do not meet these conditions they would be, to the extent of the law, be invalid. A ballot, they argue, become a vote when used by a voter to declare his or her intention at the polling booth. An invalid ballot can only become an invalid vote. In other words, if the ballot is invalid, it cannot become a valid vote. Now, what that means, in my understanding of the thoughts of the three justices is this: since in the face of the law, there were no ballots, there could not have been any votes and therefore there were no presidential elections.

I was a little more than 11 in December 12, 1959 when the general
elections to usher in indigenous officials to lead Nigeria into
Independence were held. I remember very clearly how the results were
announced in the three main Nigerian languages of Hausa, Igbo and
Yoruba, apart from English, the lingua franca. Well, I cannot claim
to understand the full import of the announcements coming from the old
Reddifusion box hanging on a nail from the wall of my father's parlour
in Isale-Bode, Ibadan, and then capital of what used to be known as
Western Region of Nigeria. I can recall, however, that one phrase
stuck to my memory. It was the one that rang out from the melodious
voice of the Hausa language announcer. It was "Ba ko daya", which I
was later to understand meant "did not score anything."

Even in my child's mind, I wondered mildly why someone who had
contested in an election in which he had a right to vote could score
nothing. Did he refuse to vote for himself? What about his wife or
wives? Didn't he have friends or relations of any kind who could at
least have supported him? It did puzzle me also that, the Action
Group, the party which seemed to have done well in my part of the
country, consistently scored nothing in the North. I wondered then
whether the people in those other parts of Nigeria did not see the
"Vote Action Group," "Life More Abundant" messages, magically written
in the sky by that flying machine known as helicopter. I made a note
to ask my father those questions when he finally returned from those
interminable political meetings from which he still hadn't withdrawn
fully, in spite of his narrow escape with his life when axe-wielding
assailants nearly smashed his skull in as he mounted the campaign
rostrum at Apatere two years or so earlier. It was his payback for
daring to leave the NCNC, known at that time as National Council of
Nigeria and the Cameroun, the party on the platform of which he had
been elected councilor in 1954 or so.

This is not the place and time to tell you what he told me – you have
to wait for my memoirs for that. It should suffice only that what he
had to say left me with several other questions, answers of which cast
doubts on the meanings of many concepts one had been taught at Civics
and Moral instruction classes in school.

Anyway, "Ba ko daya' stuck in my memory. I had no chance of forgetting
it anyway because, one of Nigeria's musical icons of the time, Victor
Olaiya who led a band which, if my memory serves, was known as the All
Stars Orchestra, went on to write and record a song of the same title
soon after. I suspect that because it reflected the frustrations of
the Western Nigerian elites, about the political culture of Northern
Nigeria of the time, it was a hit record that must have sold in tens
of thousands.

These memories came flooding back to me when the news media announced
penultimate week that Friday, December 12 had been fixed for the
delivery of judgment by the Supreme Court of the Federal Republic in
the appeals by two of President Umar Musa Yar'Adua's opponents in the
2007 elections. Erstwhile Vice-President Atiku Abubakar and a former
military Head of State, Gen Muhammadu Buhari, you may recall had
challenged Yar'Adua's election at the Presidential Elections Tribunal
on the grounds of gross electoral malpractices, but their petitions
were thrown out. They had then gone on appeal to the court of final
jurisdiction, the Supreme Court to seek a reversal of the earlier
judgment. Memories of Ba ko daya came flooding back and I thought
that I knew what to expect; that history was about to repeat itself;
that fate was playing a game with Nigeria's political history. I
wasn't too far off the mark. In fact I proved right, except that the
winner didn't clean the slate at the Supreme Court. Even Atiku
Abubakar, who suffered the worse fate, at least had one "vote." Buhari
actually had three Justices "voting" for him, as against four for
President Yar'Adua! To some, like Gani Fawehinmi, the Senior Advocate
of the Masses who became a Senior Advocate of Nigeria, this result
removes the president moral rights to remain in office. To others, the
small majority against Buhari is immaterial. To this What is
important, is the conclusion of the majority, namely, that Yar'Adua's
election stands. To those of this pragmatic persuasion, that Yar'Adua
remains the man in Aso Rock, the validly elected President and
Commander-in-Chief of the Federal Republic of Nigeria translates to
"ba ko daya" for both Atiku and Buhari. And they are right! And I
don't necessarily mean that tongue-in-cheek; after all what use is a
minority ruling to a petitioner whose goal was to upturn the status
quo and thus get a chance to try again for the "crown".

Interestingly however, the judgment, particularly the minority part of
it, did throw up a similitude of "ba ko daya" to the entire
presidential election to which I would like to draw attention. To
appreciate this, it is necessary to briefly review the key elements of
the judgments as reported in media reports.

The respected group-of-four Justices which constitutes the majority,
reportedly berated lawyers to Buhari for failing to call enough
witnesses to substantiate the claim that the elections were
fraudulently conducted. They argued that, relative to the size of the
country and the magnitude of the exercise, the number of witnesses was
infinitesimal and that even of the few witnesses, only one, eventually
testified. To Atiku Abubakar, they said, it was impossible to be
candidate in an election and still claim to have been excluded. Even
to my unlearned mind, the justices are right in their assertions, were
these to be the "koko" of the matter before them.

The group-of-three, on the other hand, seemed to have gone to the
heart of the matter. Ballot papers were by law supposed to be printed,
numbered serially and bound in booklets, the group noted. This was
supposed to have been done before the election. It is therefore a
condition precedent to the holding of an election, any election. This
condition was met in all the other elections. If the ballot papers do
not meet these conditions they would be, to the extent of the law, be
invalid. A ballot, they argue, become a vote when used by a voter to
declare his or her intention at the polling booth. An invalid ballot
can only become an invalid vote. In other words, if the ballot is
invalid, it cannot become a valid vote. Now, what that means, in my
understanding of the thoughts of the three justices is this: since in
the face of the law, there were no ballots, there could not have been
any votes and therefore there were no presidential elections.

Now, one might counter: but, in fact, we did hold an election. And
that would be true, but not according to law. Is this crass legalism
then? Should an election of such magnitude be cancelled on the basis
of such a moot technical point? These would be valid questions. But
the answers are clear: ballots are numbered, so that they can be
tracked when they transform into votes. A ballot which has no identity
cannot be proven to have gone through the hands of a valid voter
exercising his or her rights at a polling station before transforming
into a vote! This is therefore much more than a technical issue; it is
fundamental. Without being able to state the number of ballot booklets
used in the election, how can you know the number of votes cast?

The three justices concluded that since the ballots did not exist,
according to law, the votes did not exist and if the votes do not
exist, then nobody scored any votes. In other words, all the
candidates scored zero! That is to say, Yar'Adua: Ba ko daya; Buhari:
Ba ko daya; Atiku: Ba ko daya. Funny, as that sounds, it is the hard,
cold truth. As one of the readers of this column, Mr Akintunde Makinde
once said in a different context, lawyers have a dictum that says,
"Nothing can on nothing stand." Standing something on nothing was
precisely what INEC, the electoral body did. That was what the lower
tribunal upheld, and that is what the Supreme Court has affirmed. For
over 18 months, something has been standing on nothing, in defiance of
this basic principle of law, morality and most importantly of all,
against Kingdom principles. It will take a miracle to sustain it and
God is the only miracle worker, I know.